Loyola Professors Draft Bill on Defense Attorney Recording Privileges

Professors Laurie Levenson and Brentford Ferreira were quoted in the Daily Journal about a bill they drafted that would give defense attorneys similar surreptitious recording priveleges to prosecutors and law enforcement. Levenson and Ferriera, who recently joined Loyola as an adjunct professor and supervising attorney of Loyola's Project for the Innocent, hope to have the bill introduced into the California state Legislature.

Excerpt:

Brentford Ferreira, a former Los Angeles County prosecutor, and professor and project head Laurie Levenson recently penned language for a bill that would provide defense attorneys and their investigators with the ability to secretly record conversations with witnesses in criminal cases. The idea is that surreptitiously recording witnesses could help defense attorneys recognize and prove that a witness has given conflicting testimony. That could pave the way for defendants to prove their innocence or help wrongfully incarcerated defendants clear their names. 

"Faulty eyewitness identifications result in the convictions of innocent people," the authors note in the would-be bill's statement of purpose. "Witnesses often recant their previous identifications."
Ferreira and a group of Loyola law students hope to convince a lawmaker to introduce the draft bill in next year's legislative session. 

... 

"If law enforcement's taping is focusing on ongoing criminal activity, then it might make some sense as to why they have additional investigative powers," she [Levenson] said. "However, if all they are doing is secretly taking witness statements, then it is unclear why they should have a tool that the defense does not have. Both sides should want to get the true testimony of the witness."

What I Want for Christmas is...

By Professor Katherine Pratt

This op-ed was originally published in the Dec. 24, 2009 edition of the Los Angeles Daily Journal. It was republished in recognition of Giving Tuesday.

Nothing. Well, not exactly nothing--just nothing for me. What I really want for Christmas is for more holiday gift-givers to honor their family, friends and business contacts by making charitable contributions on their behalf instead of buying them material gifts. Members of my family recently exchanged the names of our favorite charities and agreed to make charitable contributions this year, in lieu of our usual Christmas gifts. Now I have started to think about how this could happen on a much larger scale.

Societal norms currently favor material gifts over charitable contributions to honor someone. A gift-giver often has no way of knowing whether friends, family, and business contacts would prefer a material gift or a charitable gift in their honor. Also, a gift-giver might be concerned about appearing cheap and selfish if she substitutes a tax deductible donation for a non-deductible material gift. When in doubt, gift-givers make the "safe" gift choice and give material presents. On the gift recipient's side, there typically is no easy, socially acceptable way of communicating to gift-givers a preference for a charitable contribution. This is especially true with respect to gifts for business associates, clients and professionals such as doctors.

The solution to these obstacles is an online charitable donation gift registry on which individuals and businesses could express their desire for donations to their preferred charities, in lieu of material gifts, by registering on the website. The registry would maintain a searchable list of the parties who have registered, with their preferred charities, and a list of charities, organized alphabetically by name and subject area and searchable by name or keyword. Gift-givers could search the registry to make donations honoring their friends, family, and business contacts. A fitting name for the registry would be the Gifts for Good Registry.

When I asked my colleague, tax exempt organizations expert Ellen Aprill, whether such a registry already exists, she directed me to JustGive.org. JustGive is an online charity that maintains a searchable list of 1.5 million charities and allows a person to create a Charity Registry. The Charity Registry functions like my imagined Gifts for Good Registry, but lacks some features I envisioned, such as an e-card acknowledgement, to notify the honoree of the donation and allow for an online thank-you, and an option to buy stickers for holiday cards or a tasteful placard for display in a business office, announcing registration on the site. Also, JustGive charges a fee for each donation from the Charity Registry.

California's Death Penalty: A Year in Review

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on Justia.com.

On November 6, 2012, California voters narrowly defeated Proposition 34, a measure that would have replaced the state's death penalty with the sentence of life without the possibility of parole (LWOP) as the state's most severe punishment. Prop 34 failed to pass by about 250,000 votes.

Opponents of Prop 34 used a classic political technique to defeat the measure: fear mongering. They told voters that "instead of justice, killers [would] get lifetime housing/healthcare benefits" if Prop 34 passed. Voters were urged to keep the current system of capital punishment in place to "Protect California." They convinced voters that the death penalty was needed to punish people like "Richard 'The Night Stalker' Ramirez [who] kidnapped, raped, tortured and mutilated 14 people and terrorized 11 more including children and senior citizens."

The voters were duped. On June 17, 2013, after nearly a quarter of a century on death row at great expense to taxpayers, Richard Ramirez died peacefully at Marin General Hospital in Greenbrae, California, where he was receiving treatment for B-cell lymphoma.

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Introducing Guest Alumni Blogger Katherine Macfarlane

Katherine Macfarlane '06, our newest Guest Alumni Blogger, was a standout student at Loyola Law School, where she was chief articles editor of the Loyola of Los Angeles Law Review and received the Dean's Service Award. She later clerked for the Hon. Frederick J. Martone of the U.S. District Court for the District of Arizona, and for the Hon. Arthur L. Alarcón of the United States Court of Appeals for the Ninth Circuit. She is now teaching fellow and assistant professor of professional practice at LSU Law Center. And her scholarship is getting noticed. Her law review article, "The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law," is forthcoming in Volume 19.2 of the Michigan Journal of Race and Law and is quoted in theWall Street Journal Law Blog.

-Associate Dean Michael Waterstone

Procedure Takes Center Stage in Stop-and-Frisk Litigation

By Katherine A. Macfarlane '06, Guest Alumni Blogger

Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."

Multiple Choice Exams are (a) good assessment tools, (b) bad assessment tools, (c) all of the above.

By Associate Professor Kevin Lapp

This post originally appeared on EvidenceProf Blog.

Multiple choice testing is a popular assessment format in Evidence courses, more popular in my experience in Evidence than in other courses. Some professors use it exclusively, while others mix multiple-choice testing with essay questions on their exams. There's good reason for using multiple choice testing in Evidence courses. For one, the MBE portion of the bar exam contains multiple choice Evidence questions, so doing so as part of a final exam helps prepare students for the bar exam format. In addition, multiple choice testing has been around, and is widely accepted as a credible format to assess student knowledge. Evidence is also a heavily rule-based class that lends itself to an assessment format that requires students to identify a single correct answer. Finally, multiple choice questions allow professors to assess more topics than can be squeezed into an essay question, reducing the chances that a student performs well on an exam because he happened to know the issues covered by the essay questions.

But there can be a large gap between good multiple choice questions and bad multiple choice questions. This post is about how those of us who do use multiple choice questions can know if we are doing it in a way that makes for good assessment. The credibility of our multiple choice questions as sound assessment tools is particularly important given the high stakes testing that goes on in so many law school classrooms. When the great bulk, if not the entire portion, of a student's grade hinges on a single 3 or 4 hour exam, it is our duty to take advantage of the available tools to ensure that our exams function as credible assessment tools.

The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on Justia.com.

Capital punishment in the United States is often considered in terms of its constitutional vulnerability. Does it violate the Eighth Amendment's prohibition on cruel and unusual punishment? Is the delay in the appeal and post-conviction remedy process cruel and unusual? Are condemned inmates provided with adequate representation during capital trials? Is the death penalty evenly applied? These are some of the legal issues at the heart of longstanding legal debates over our use of capital punishment.

But on a more practical level, any debate over the efficacy of the death penalty should also include a discussion of the enormous psychological toll capital punishment takes on jurors, Justices, Governors, and even executioners. These individuals have been speaking out with greater force recently about how it feels when the responsibility of taking the life of another person falls on the shoulders of an individual.

Perhaps that is what Justice John Paul Stevens (Retired) had in mind when he stated last year:

"I really think that in regard to the death penalty . . . I'm not sure that the democratic process won't provide the answers sooner than the court does, because I do think there is a significantly growing appreciation of the basic imbalance in cost-per-person benefit analysis. And the application of the death penalty does a lot of harm, and does really very little good."

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